Whose Religious Liberty Is It Anyway?

At his confirmation hearings, Brett Kavanaugh said just what religious conservatives — and Christian nationalists — wanted to hear.

By Katherine StewartSept. 8, 2018

On day two of the confirmation hearings for Judge Brett M. Kavanaugh, President Trump’s second nominee to the Supreme Court, Senator John Cornyn of Texas brought up the 2000 case Santa Fe Independent School District v. Doe, in which the court ruled that sectarian prayers at high school football games violated the clause of the First Amendment that prohibits the establishment of religion.

Mr. Cornyn repeated Chief Justice William H. Rehnquist’s complaint that the decision “bristle[d] with hostility to all things religious in public life.” In fact, the plaintiffs in the case identified as Catholic and Mormon, and it is safe to say that they were not hostile to religion, but to the presumption that one religion speaks for all.

Judge Kavanaugh, eager to signal his agreement with Mr. Cornyn, tossed back the catch phrase that Mr. Cornyn appeared to be fishing for: “religious liberty.”

Over the course of this week’s Senate confirmation hearings, the other senator from Texas, Ted Cruz, repeatedly identified Judge Kavanaugh as a jurist who would uphold “religious liberty.” That should concern anyone who cares about actual freedom, religious and otherwise. What senators Cornyn, Cruz and other religious conservatives mean by “religious liberty” is its opposite.

If the Senate confirms Brett Kavanaugh, it will be declaring that the United States is a nation in which one brand of religion enjoys a place of privilege; that we are a nation of laws — except in cases where the law offends those who subscribe to our preferred religion; and that we recognize the dignity of all people unless they belong to specific groups our national religion views with disapproval.

When a pharmacist refuses to fill a prescription on the basis of his own religious beliefs, according to today’s Christian nationalists, that is a shining example of “religious liberty.” It is not. When a Catholic hospital delays or refuses to perform a legal and medically indicated procedure on a woman suffering a miscarriage on the grounds that the procedure violates its religious directives, that isn’t religious liberty. When a private school that miseducates students with scientifically illiterate and historically inaccurate theories claims a public subsidy, or a Medicare-supported retirement home turns away a lesbian couple, that isn’t religious liberty, either.

Let’s call it by its true name: religious privilege, not religious liberty. Today’s Christian nationalists want the ability to override the law where it conflicts with their religious beliefs, and thus to withdraw from the social contract that binds the rest of us together as a nation.

This kind of religious privilege has a history. In the Jim Crow south, for example, when black doctors and black patients were routinely shunted to inferior hospitals, many people justified the practice in terms of their sincerely held “biblical” belief that God intended for the races to be forever separated.